# Executive Engineer, Aasthai Yantrik Khand v. Ram Kali & Ors

- **Citation:** (2021) 11 ILRA 1105
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-06
- **Case number:** First Appeal From Order No. 901 of 2016
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/executive-engineer-aasthai-yantrik-khand-v-ram-kali-ors-46515
- **Pages:** 7

## Headnote

A. Motor Vehicles Act, 1988 - Section 163A -
Claim petition - Driver not necessary party -
claim-petition u/s 163 A maintainable even if
the driver of the offending vehicle had not been
impleaded as a defendant - in proceedings
under Section 163-A, claimants is not required
to plead or establish any wrongful act, doing or
negligence on the part of either the owner or
the driver of the vehicle - driver of the
offending vehicle is not a necessary party and
proceedings shall not be vitiated because the
driver was not impleaded in the claim petition
if the owner of the vehicle had been impleaded
as a party - under Section 163-A, the liability to
pay compensation is of the owner and the
Insurance Company, the proceedings under
Section 163-A of the Act, 1988 will not be
vitiated merely because the driver of the
Vehicle was not impleaded as a party in the
claim case (Para 14, 15, 17, 19)

B. Civil law - Claim Petition - Motor Vehicles
Act, S.163A - U.P Motor Vehicles Rules, 1998,
Chapter IX, Rule 207, 208, 221 - Rules 9 to 13
and 15 to 30 of Code of Civil Procedure, 1908
shall, so far as may be, apply to proceedings
before the claims Tribunal - Civil Procedure
Code, O.5 R.9(3) - Delivery of summons by
court - where summons issued by the Court are
properly addressed, pre-paid and duly sent by
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
registered post acknowledgement due, then
the Court issuing the summons shall declare
that the summons had been duly served on the
defendant notwithstanding the fact that the
acknowledgement having been lost or mislaid,
or for any other reason, has not been received
by the Court within 30 days from the date of
issue of summon (Para 12)

Dismissed. (E-5)

Cases Relied on :

## Text

11 All. Executive Engineer, Aasthai Yantrik Khand Vs. Ram Kali & Ors.
1105
behind introduction of Section 163-A of the Act,
namely, final compensation within a limited time
frame on the basis of the structured formula to
overcome situations where the claims of
compensation on the basis of fault liability was
taking an unduly long time. In fact, to
understand Section 163-A of the Act to permit
the Insurer to raise the defence of negligence
would be to bring a proceeding under Section
163-A of the Act at par with the proceeding
under Section 166 of the Act which would not
only be self-contradictory but also defeat the
very legislative intention.

9. For the aforesaid reasons, we
answer the question arising by holding that in a
proceeding under Section 163-A of the Act it is
not open for the Insurer to raise any defence of
negligence on the part of the victim."

12. The view in United India Insurance
Co. Ltd. vs. Sunil Kumar and Another (supra)
has been followed by a subsequent three-Judge
Bench in Shivaji and Another vs. Divisional
Manager, United India Insurance Co. Ltd. and
Others, AIR 2018 SC 3705.

13. In view of the aforesaid position of
law, that has now come to be settled, this Court
is of the opinion that the impugned award is not
open to be assailed on the ground that the
claimant was a tortfeasor or one guilty of
negligence on his part, and, therefore, could not
maintain a petition under Section 163-A of the
Act.

14. No other point was pressed.

15. Therefore, this appeal fails and stands
dismissed. There shall be no order as to costs.

16. The compensation deposited with the
Tribunal shall be disbursed to the claimant,
forthwith.
----------
(2021)12ILR A1105
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.12.2021

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

First Appeal From Order No. 901 of 2016

Executive Engineer, Aasthai Yantrik Khand
 ...Appellant
Versus
Ram Kali & Ors. ...Respondents

Counsel for the Appellant:
Standing Counsel

Counsel for the Respondents:
Rajesh Trivedi

A. Motor Vehicles Act, 1988 - Section 163A -
Claim petition - Driver not necessary party -
claim-petition u/s 163 A maintainable even if
the driver of the offending vehicle had not been
impleaded as a defendant - in proceedings
under Section 163-A, claimants is not required
to plead or establish any wrongful act, doing or
negligence on the part of either the owner or
the driver of the vehicle - driver of the
offending vehicle is not a necessary party and
proceedings shall not be vitiated because the
driver was not impleaded in the claim petition
if the owner of the vehicle had been impleaded
as a party - under Section 163-A, the liability to
pay compensation is of the owner and the
Insurance Company, the proceedings under
Section 163-A of the Act, 1988 will not be
vitiated merely because the driver of the
Vehicle was not impleaded as a party in the
claim case (Para 14, 15, 17, 19)

B. Civil law - Claim Petition - Motor Vehicles
Act, S.163A - U.P Motor Vehicles Rules, 1998,
Chapter IX, Rule 207, 208, 221 - Rules 9 to 13
and 15 to 30 of Code of Civil Procedure, 1908
shall, so far as may be, apply to proceedings
before the claims Tribunal - Civil Procedure
Code, O.5 R.9(3) - Delivery of summons by
court - where summons issued by the Court are
properly addressed, pre-paid and duly sent by
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
registered post acknowledgement due, then
the Court issuing the summons shall declare
that the summons had been duly served on the
defendant notwithstanding the fact that the
acknowledgement having been lost or mislaid,
or for any other reason, has not been received
by the Court within 30 days from the date of
issue of summon (Para 12)

Dismissed. (E-5)

Cases Relied on :

1. Shivaji & anr. Vs Divisional Manager, United India
Insurance Co.Ltd. & ors. 2018(3) T.A.C. 673(S.C.)

2. New India Insurance Co.Ltd., Vs Lalawmpuia
(Minor) & ors. 2010(4) T.A.C. 500 (Gau.)

3. Machindranath Kernath Kasar Vs D.S.Mylarappa &
ors. (2008) 13 SCC 198

4. Uma Kant Tewari Vs Jai Prakash Srivastava & ors.
(2019) 5 ADJ 640

5. United India Insurance Company Ltd. Vs Sunil
Kumar & anr. (2019) 12 SCC 398

(Delivered by Hon'ble Salil Kumar Rai, J.)

1. Heard counsel for the appellant and Shri
Rajesh Trivedi representing the claimantsopposite party nos. 1 to 6.

2. The present First Appeal From Order
has been filed by the defendant under Section
173
of
the
Motor
Vehicles
Act,
1988
(hereinafter referred to as, ''Act') against the
award dated 25.2.2013 passed by the Motor
Accident Claims Tribunal, Lucknow in Motor
Accident Claim Petition No. 431 of 2012 Ram
Kali versus Executive Engineer (Aasthai
Yantrik
Khand
(Temporary
Mechanical
Division), Lok Nirman Vibhag, District Agra).

3. The facts of the case are that
respondent/opposite party nos. 1 to 6 filed a
Claim Petition under Section 163-A of the Act
alleging that Ram Asrey died in an accident
caused due to rash and negligent driving of the
vehicle (Registration No. U.P 80A 9846) by its
driver. The defendant-appellant is the owner of
the offending vehicle. The driver of the vehicle
was not impleaded as a defendant in the claim
petition. A First Information Report regarding
the aforesaid incident was also filed and Case
Crime No.124/2012 under Section 279/304-A
I.P.C was registered against the driver of the
vehicle.

4. The respondent/opposite party no. 1 is
the wife of the deceased Ram Asrey while the
respondent/opposite party nos. 2 to 6 are the
sons of the deceased Ram Asrey. In their claim
petition, the respondent/opposite parties claimed
a compensation of Rs.10,66,000.00 alleging that
the deceased was earning Rs.3000/- per month at
the time of his death.

5. The Tribunal issued summons to the
defendant-appellant on 4.9.2012 by registered
post
with
acknowledgment
due
but
the
acknowledgments were not received by the
Court by 10.10.2012 and therefore, the Tribunal
declared that the summons had been duly served
on the appellant/defendant. The defendantappellant did not put in appearance in the case
and no written statement was filed by it till
22.10.2012. Consequently, by order dated
22.10.2012, the Tribunal passed an order to
proceed ex parte against the appellant-defendant.

6. In the claim-petition, the opposite party
no. 1 appeared as plaintiff-witness no.1 to prove
her case regarding the accident. The Postmortem
Report, the First Information Report registering
Case Crime No.124 of 2012, the spot inspection
report
prepared
by
the
Police
during
investigation and the charge sheet submitted by
the Police against the driver of the offending
vehicle were also filed as evidence to prove the
case of the claimant. The Tribunal, after
considering the evidence on record, held that as
the claim-petition was filed under Section 163-A
11 All. Executive Engineer, Aasthai Yantrik Khand Vs. Ram Kali & Ors.
1107
of the Act, therefore, the negligence of the driver
in causing the accident was not required to be
proved and the claimants-opposite parties were
entitled to compensation from the defendantappellant as it was proved from the oral and
documentary evidence on record that Ram Asrey
had died due to an accident arising out of the use
of
the
offending
vehicle.
The
Tribunal
determined the compensation on minimum
wages payable to a daily wage labour, i.e.,
Rs.3000/- per month and after holding that the
age of the deceased at the time of his death was
between 35 to 40 years, applied a multiplier of
16 to determine the total compensation payable
to the claimants-opposite parties. The Tribunal
by its award dated 25.2.2013 determined the
compensation payable to the claimants-opposite
parties as Rs.3,93,500.00 with six percent simple
interest from the date of filing the claim petition.

7. It was argued by the counsel for the
appellant that the award dated 25.2.2013 has
been passed without serving notice to the
appellant and without giving any opportunity of
hearing to the appellant. It was argued by the
counsel for the appellant that the claim-petition
was not maintainable because the driver of the
offending vehicle had not been impleaded as a
defendant in the said case. It was argued that for
the aforesaid reasons, the impugned award
passed by the Tribunal is liable to be set aside.

8. Rebutting the argument of the counsel
for the appellant, the counsel for the claimantsopposite parties has argued that notices had been
issued to the appellant by registered post and the
appellant deliberately avoided to appear before
the Tribunal and therefore, vide its order dated
22.10.2012, the Tribunal proceeded to hear the
case ex parte against the appellant. It was
argued that in the circumstances of the case, the
appellant had been given an opportunity to
represent his case before the Tribunal which
they failed to avail of and no illegality has been
committed by the Tribunal in proceeding ex
parte against the appellant. It was further argued
that the claim-petition was filed under Section
163-A of the Act and the award has also been
computed on the structured formula basis in
accordance with Schedule-II of the Act,
therefore, the negligence of the owner or the
driver of the offending vehicle was not required
to be proved by the claimants-opposite parties
and thus, the driver of the offending vehicle was
not a necessary party in the claim petition. It was
argued that for the aforesaid reasons, the appeal
has no merit and is liable to be dismissed. In
support of his contention, the counsel for the
claimants-opposite parties has relied on the
judgment of the Supreme Court reported in
Shivaji
and
Another
versus
Divisional
Manager, United India Insurance Co.Ltd. and
others 2018(3) T.A.C. 673(S.C.) and the
judgment of Gauhati High Court reported in
New
India
Insurance
Co.Ltd.,
versus
Lalawmpuia (Minor) and others 2010(4)
T.A.C. 500 (Gau.).

9. I have considered the submissions of the
counsel for the parties and also perused the
records.

10. The procedure to be followed by the
Tribunal in a claim-petition filed under Sections
163-A and 166 has been prescribed in Chapter
IX of the U.P Motor Vehicles Rules, 1998.

11. Rule 207 of the Rules 1998 provides
that the Claims Tribunal shall send to the owner
of the Motor Vehicle involved in the accident
and its insurer, a notice of the date on which it
will hear the application. Rule 208 of the Rules
1998 provides that the owner of the Motor
Vehicle and the insurer, may at or before the
first hearing or within such further time as the
claims Tribunal may allow, file a written
statement dealing with the claim raised in the
application. Rule 208(3) of the Rules, 1998
provides that the date of first hearing for filing
written statement under sub rule (1) shall not be
1108 INDIAN LAW REPORTS ALLAHABAD SERIES
more than one month from the date of issuance
of notices to the owner/driver and insurer of the
Motor Vehicle and no further time, more than
one month shall be given for that. Rule 221 of
the Rules 1998 provides that Rules 9 to 13 and
15 to 30 of Code of Civil Procedure, 1908
(hereinafter referred to as, ''C.P.C.') shall, so
far as may be, apply to proceedings before the
claims Tribunal.

12. Order V Rule 9(3) of C.P.C. provides
that amongst other modes, summons may be made
by delivering or transmitting a copy thereof by
registered post acknowledgment due addressed to
the defendant or his agent empowered to accept
the service of summons. Order V Rule 9(5) of
C.P.C provides that where summons issued by the
Court are properly addressed, pre-paid and duly
sent by registered post acknowledgement due, then
the Court issuing the summons shall declare that
the summons had been duly served on the
defendant notwithstanding the fact that the
acknowledgement having been lost or mislaid, or
for any other reason, has not been received by the
Court within 30 days from the date of issue of
summons. Order V Rule 9 of C.P.C is reproduced
below:-

"Rule 9 Order V of Code of Civil
Procedure 1908 "Delivery or transmission of
summons for service"

9. Delivery of summons by Court.-
 (1) Where the defendant resides within the
jurisdiction of the Court in which the suit is
instituted, or has an agent resident within that
jurisdiction who is empowered to accept the
service of the summons, the summons shall,
unless the Court otherwise directs, be delivered
or sent either to the proper officer to be served
by him or one of his subordinates or to such
courier services as are approved by the Court.

(2) The proper officer may be an officer
of a Court other than that in which the suit is
instituted, and where he is such an officer, the
summons may be sent to him in such manner as
the Court may direct.

(3) The services of summons may be
made by delivering or transmitting a copy
thereof by registered post acknowledgment due,
addressed to the defendant or his agent
empowered to accept the service or by speed
post or by such courier services as are approved
by the High Court or by the Court referred to
in sub-rule (1) or by any other means of
transmission of documents (including fax
message or electronic mail service) provided by
the rules made by the High Court:

Provided that the service of summons
under this sub-rule shall be made at the expenses
of the plaintiff.

(4) Notwithstanding anything contained
in sub-rule (1), where a defendant resides outside
the jurisdiction of the court in which the suit is
instituted, and the Court directs that the service of
summons on that defendant may be made by such
mode of service of summons as is referred to in
sub-rule
(3)
(except
by
registered
post
acknowledgment due), the provisions of rule 21
shall not apply.

(5) When an acknowledgment or any
other receipt purporting to be signed by the
defendant or his agent is received by the Court
or postal article containing the summons is
received back by the Court with an endorsement
purporting to have been made by a postal
employee or by any person authorised by the
courier service to the effect that the defendant or
his agent had refused to take delivery of the
postal article containing the summons or had
refused to accept the summons by any other
means specified in sub-rule (3) when tendered or
transmitted to him, the Court issuing the
summons shall declare that the summons had
been duly served on the defendant:
11 All. Executive Engineer, Aasthai Yantrik Khand Vs. Ram Kali & Ors.
1109

Provided that where the summons
was properly addressed, pre-paid and duly
sent by registered post acknowledgment due,
the declaration referred to in this sub-rule
shall be made notwithstanding the fact that
the acknowledgment having been lost or
mislaid, or for any other reason, has not been
received by the Court within thirty days from
the date of issue of summons.

(6) The High Court or the District
Judge, as the case may be, shall prepare a panel
of courier agencies for the purposes of sub-rule
(1).

13. It is not the case of the appellant that
notice/summons in the case issued to the appellant
were not properly addressed and were not duly
sent by registered post with acknowledgment due.
The records of the case indicate and the said fact
has also been been recorded in the award of the
Tribunal that summons were issued by registered
post to the appellant. The summons were issued
on 4.9.2012. The acknowledgment was not
received by the Tribunal till 10.10.2012 i.e., after
30 days from the date of issue of the summons. In
the circumstances, by virtue of Order V Rule 9 (5)
- Proviso, the Tribunal had, rightly, by its order
dated 10.10.2012 declared that the summons had
been duly served on the defendant. In view of the
aforesaid, it shall be deemed that the appellant had
been served summons/notice in the case. The
appellant did not appear before the Tribunal and
did not file any written statement contesting the
claim petition. Therefore, the Tribunal vide its
order
dated
22.10.2012
directed
that
the
proceedings be heard ex-parte against the
appellant-defendant. For the aforesaid reasons, the
contention of the defendant-appellant that no
opportunity of hearing was given to the defendant
and no notice was served on him is unfounded and
is rejected.

14. So far as the arguments of the counsel
for the appellant that the claim-petition was not
maintainable because the driver of the offending
vehicle had not been impleaded as a defendant
in the case, is concerned, the same for reasons
stated presently is also without substance.

15. A reading of the grounds raised in the
memo of appeal shows that the appellant has not
disputed the fact that Ram Asrey died in an
accident arising out of the use of the offending
Vehicle and has filed the appeal contesting only
the allegations made in the claim petition
regarding the negligence of the driver of the
offending vehicle in causing the accident. It is
also not the case of the appellant that he is not
the owner of the vehicle. The claim petition was
filed and was registered under Section 163-A of
the Act in which the claimant is not required
either to plead or establish any wrongful act, or
neglect or default of the owner of the Vehicle or
of any other person. Section 163-A of the Act, is
reproduced below:-

"163 A. Special provisions as to
payment of compensation on structured formula
basis.--

(1)
Notwithstanding
anything
contained in this Act or in any other law for the
time being in force or instrument having the
force of law, the owner of the motor vehicle or
the authorised insurer shall be liable to pay in
the case of death or permanent disablement due
to accident arising out of the use of motor
vehicle, compensation, as indicated in the
Second Schedule, to the legal heirs or the victim,
as the case may be. Explanation.--For the
purposes
of
this
sub-section,
"permanent
disability" shall have the same meaning and
extent as in the Workmen's Compensation Act,
1923 (8 of 1923).

(2) In any claim for compensation
under sub-section (1), the claimant shall not
be required to plead or establish that the
death or permanent disablement in respect of
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
which the claim has been made was due to
any wrongful act or neglect or default of the
owner of the vehicle or vehicles concerned or
of any other person.

(3) The Central Government may,
keeping in view the cost of living by notification
in the Official Gazette, from time to time amend
the Second Schedule".

16. The Supreme Court in Machindranath
Kernath Kasar versus D.S.Mylarappa and
others (2008) 13 SCC 198 which was regarding
a case regarding a claim petition filed under
Section 166 of the Act (in which the negligence
of the driver of the vehicle has to be pleaded and
established by the claimants) held that the driver
may not be a necessary party in the claim
proceedings in the sense that in his absence, the
entire proceedings shall not be vitiated as the
owner of the vehicle was a party in his capacity
as a joint tortfeasor. The observations of the
Supreme Court in Paragraph -30 of the said
reports is reproduced below-

"30. It is, however, of some interest to
note the provisions of Section 168 of the Motor
Vehicles Act. In terms of this aforementioned
provision, the Tribunal is mandatorily required
to specify the amount which shall be paid by the
owner or driver of the vehicle involved in the
accident or by or any of them. As it is imperative
on the part of the Tribunal to specify the amount
payable inter alia by the driver of the vehicle, a
fortiori he should be impleaded as a party in the
proceeding. He may not, however, be a
necessary party in the sense that in his
absence, the entire proceeding shall not be
vitiated as the owner of the vehicle was a party
in his capacity as a joint tortfeasor."

17. As noted earlier in cases filed under
Section 166 of the Act, the claimants have to
plead and establish the negligence of the driver
in causing the accident. The role of a driver in
any claim proceedings under the Act is to
contest the allegations of negligence made
against him as also the allegation that the
accident was caused by use of the vehicle driven
by him. As noted earlier, the allegation of the
claimants and the findings of the Tribunal that
the accident happened due to use of the vehicle
owned by the appellant is not challenged in the
present
appeal.
A
driver
is
sufficiently
represented in proceedings under Section 166
even if he appears as a witness to deny and
contest the allegations of negligence made
against him (Machindranath Kernath Kasar
(Supra) and Uma Kant Tewari versus Jai
Prakash Srivastava and others. (2019) 5 ADJ
640. If that is the situation under Section 166,
then obviously in proceedings under Section
163-A, where the claimants are not required to
plead or establish any wrongful act, doing or
negligence on the part of either the owner or the
driver of the vehicle, the driver of the offending
vehicle is not a necessary party and proceedings
shall not be vitiated because the driver was not
impleaded in the claim petition if the owner of
the vehicle had been impleaded as a party. It
was observed by the Supreme Court in United
India Insurance Company Ltd. versus Sunil
Kumar and another (2019) 12 SCC 398.
Paragraph 8 & 9 are reproduced below:-

"8. From the above discussion, it is
clear that grant of compensation under Section
163-A of the Act on the basis of the structured
formula is in the nature of a final award and the
adjudication thereunder is required to be made
without any requirement of any proof of
negligence of the driver/owner of the vehicle(s)
involved in the accident. This is made explicit
by Section 163A(2). Though the aforesaid
section of the Act does not specifically exclude a
possible defence of the Insurer based on the
negligence of the claimant as contemplated by
Section140(4), to permit such defence to be
introduced by the Insurer and/or to understand
the provisions of Section 163A of the Act to be
11 All. Ram Kumar Awasthi Vs. Rajeshwar & Ors.
1111
contemplating any such situation would go
contrary to the very legislative object behind
introduction of Section 163A of the Act, namely,
final compensation within a limited time-frame
on the basis of the structured formula to
overcome situations where the claims of
compensation on the basis of fault liability were
taking an unduly long time. In fact, to
understand Section 163A of the Act to permit
the Insurer to raise the defence of negligence
would be to bring a proceeding under Section
163A of the Act on a par with the proceeding
under Section 166 of the Act which would not
only be self-contradictory but also defeat the
very legislative intention.

9. For the aforesaid reasons, we
answer the question arising by holding that in a
proceeding under Section 163A of the Act, it is
not open for the Insurer to raise any defence of
negligence on the part of the victim."

18. The aforesaid judgment was also
referred and followed by the Supreme Court in
Shivaji and another (Supra).

19. As the negligence of the driver of the
offending vehicle is not to be pleaded or proved
in proceedings under Section 163-A of the Act
and under Section 163-A, the liability to pay
compensation is of the owner and the Insurance
Company, the proceedings under Section 163-A
of the Act, 1988 will not be vitiated merely
because the driver of the Vehicle was not
impleaded as a party in the claim case.

20. For the aforesaid reasons, the appeal
lacks merit and is dismissed. Interim order, if
any, passed in favour of the appellant, is
vacated.
----------
(2021)12ILR A1111
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.11.2021
BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

First Appeal From Order No. 1092 of 2008

Ram Kumar Awasthi ...Appellant
Versus
Rajeshwar & Ors. ...Respondents

Counsel for the Appellant:
Sri Ramendra Asthana, Sri M.L. Maurya

Counsel for the Respondents:
Sri Bimal Prasad, Sri K.N.Saxena, Sri Pankaj
Saksena, Sri Vijay Kumar Ojha, Sri Vijay Prakash
Pandey , Sri Anupam Laloriya

Civil Law - Civil Procedure Code,1908 - O.41 R.
23, O.41 R.25 - Remand of case by Appellate
Court - first appellate court remanded the
matter with a direction to the trial court to
issue additional commission for assessing the
value of the construction after deducting
depreciation value and after obtaining the
Amin report about market value of the land as
well as the construction and after giving
opportunity of evidence to both the parties,
determine the valuation of the plaintiff's share
- Held - There was no sufficient evidence
before the first appellate court to determine
the issues involved and hence, the order of
remand passed by the first appellate court is
well justified. (Para 8, 9, 10)

Allowed. (E-5)

Cases Relied on:

1. Ram Bali Singh & ors. Vs Ram Sakal (F.A.F.O. No.
560 of 1989-Decided on March 13, 1989

2. Chaturghun Vs Dhanpati Rai & ors. 2007 (69) ALR
861

(Delivered by Hon'ble Syed Aftab Husain Rizvi, J.)

1. This First Appeal From Order has been
filed against the judgment and order dated
6.12.2007 passed by the First Appellate Court of